Monis Appu V. Heen Hamy Et Al.,

Present: Bertram C. J.

MONIS APPU v. HEEN HAMY et al.

577-P. C. Panadure, 82, 822.

Evidence-Co-accused-Statement from the dock by one implicating another-Evidence Ordinance, 8. 30.

A statement made by an accused person from the dock impliedly a co-accused is not admissible  in evidence against the latter.

APPEAL from a conviction by the Police Magistrate of Panadure. The two accused in this case were charged with the theft of cattle. Both absconded. The second accused was arrested first and produced by the police. On the charge being explained to him from the warrant, he stated: ?I saw Heen Hamy (i. e., the first accused) removing the bull about 12 o?clock. ?The first accused was not produced for another fortnight. He pleaded not guilty. Later the second accused repudiated the statement and said that it was made under police coercion. The learned Police Magistrate expressed his disbelief of the allegations against the

police, and relying on the statement of the second accused held; ?Now, taking this confession as a genuine one, and the rest of the evidence led in the case as corroborative of that confession, I think there is no other conclusion that is possible than that both accused are guilty. ?

No appearance for accused-appellants.

November 4, 1924. Bertram C. J. -

This is an ordinary cattle theft case, with the usual difficulties that present themselves in the evidence in such cases. There is a further difficulty, however, which arises out of a statement by one of the prisoners, and the manner in which it has been dealt with by the learned Magistrate. According to the story of the prosecution, the owner of the animal woke up and saw the two accused taking it away. He woke his son and gave him their names. They went in pursuit, and met the principal witness, Konja, who told them he had seen and recognized the thieves. The son, however, in giving his evidence in the Police Court, some three and a half months after the event, said that when Konja met them he stated he had seen the thieves, Heen Hamy and Peter. ?My father asked which Peter. Konja said: ? Mr. Wickrarage Peter of Handapangoda. ? Further asked who this Heen Hamy was, he said Jakodige Heen Hamy. ?He persists, however, that his father gave him their names when he woke him up. This evidence at once suggests a doubt as to whether the prosecutor did recognize the thieves, and whether he told his son their names. He reported the matter that morning to the Vidane Arachchi, who was acting for the local headman. To this man he gave no names. The Vidane Arachchi said that he made no inquiries. It is difficult to believe that any headman receiving a report of a cattle theft would not ask who were the witnesses. A belated witness, Raphael, turned up later in the day, and his name was given to the headman two days afterwards.

The case, therefore, on the face of it, was a dubious one, but both accused absconded. The second accused was arrested and produced by the police a month later, and on the charge being explained to him from the warrant, he stated: ?I saw Heen Hamy removing the bull about 12 o?clock. I went out to answer a call of nature, then I saw him. ?Heen Hamy, the first accused, was not produced for another fortnight. He pleaded not guilty. In subsequent proceedings the second accused repudiated his statement and said that he made it under police coercion.

The learned Magistrate in his judgment drew attention to this statement as a special feature of the case, expressed his disbelief of the allegations of police coercion, and said: ?Now, taking this

confession as a genuine one and the rest of the evidence led in the case as corroborative of that confession, I think there is no other conclusion that is possible than that both the accused are guilty of the offence with which they are charged. ?

When this case came up on appeal, the accused were not represented by counsel. The attentio

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